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Understanding copyright law can be confusing for business owners,
but the costs of infringing on another's copyright can be very
high. To discover some of these copyright myths, we spoke to
Barbara Bressler, a law professor and director of the
Technology/Intellectual Property Clinic at DePaul University
College of Law in Chicago.
The Clinic provides pro bono legal services for entrepreneurs,
artists and inventors in the areas of copyright, trademark and
patent law.

Here are the seven biggest myths business owners believe about
copyrights.

1. "I can use a small amount of the song or text without
a problem."
There is no "safe" percentage or portion of a work that can be
used without obtaining permission from the copyright owner. "I
had a client tell me that one could use up to eight bars of a
musical composition and it would not be considered infringement,"
Bressler recalled. That's not true – using even a few seconds of
a song or a few lines of a piece of text without the owner's
permission may be copyright infringement. Last December, a
songwriter sued Alicia Keys for allegedly sampling two seconds of
his song in her song "Girl on Fire." The case was settled earlier
this year for an undisclosed amount.

2. "I can copyright my idea."
Copyright protects "original works of authorship" in a tangible
medium of expression. In other words, original books, musical
compositions, movies and computer software are capable of
copyright protection. Ideas are not copyrightable: only original
works of authorship are eligible for copyright protection.
Descriptions, however, may be copyrighted. For example, the
ingredients of a recipe are not protected, but the way a cookbook
is compiled, the accompanying photographs and explanations may be
copyrighted. Protecting your invention for a new technology falls
under patent law, under the umbrella of Intellectual property
rights, which are discrete areas of law that people tend to
confuse with copyright. (Copyright, trademark, and patent law all
fall under the general category of Intellectual property.)

3. "Since I'm not making money off the song/image/story,
it's fair use."
Fair use is a defense to a claim of copyright infringement.
Courts review four factors to determine whether use of a
copyrighted work is "fair." This myth may be true, but only on a
case-by-case basis. And it's not wise to believe fair use is a
"slam dunk" defense, because it's very fact-specific. Fair use is
reviewed on a case-by-case basis. Parody, for example, is
considered a classic example of fair use.

Whether the use is commercial is just one factor courts consider.
The other factors are: the purpose and character of the use (how
the original work is being used – for example, is it a parody or
commentary?), the nature of the copyrighted work (is it factual
or biographical information?), amount and substantiality of the
work used (is it the “heart” of the work? A memorable or key part
of the original work?), and the effect of the use on the
potential market or value of the copyrighted work (are people
less likely to purchase the original work because of the use?).

4. "I can copyright my business
name/logo/slogan."
Entrepreneurs often confuse copyright with trademark, Bressler
says. A trademark is a word, phrase or logo that identifies the
source of a product or service. It's designed to prevent consumer
confusion as to the source of a product or service. Examples of
trademarks include the Big Mac, the "I'm Lovin' It" tagline, and
the golden arches that are synonymous with the McDonald's
corporation.

5. "I tried to find the author/photographer, but
couldn't, so I can just go ahead and use the
work."
Not so fast, Bressler says. These are called "orphan works," and
they can present a liability problem for users who haven't
obtained permission. The Copyright Office and Congress have
considered possible solutions to this frustrating problem for the
past several years but, as of now, there's no guidance or law. If
you intend to use this material, be sure to perform a
risk/benefit analysis.

6. "Someone else posted an infringing image on my
website, so I'm not liable."
You might be. The Digital Millennium Copyright Act (DMCA) offers
a "safe harbor" for owners whose websites contain copyrighted
work posted by a third party. (For example, user generated
content.) Bressler says entrepreneurs can help themselves by
learning about DMCA protections, such as posting a DMCA notice
and takedown procedure in the website's terms and conditions.

7. "The woman in the photo isn't a celebrity, therefore I
can use her picture."
Wrong. All individuals have the right of publicity, or the right
to control their name, voice, image, and likeness, regardless of
whether or not they're a public figure. Each state has its own
laws governing right of publicity, but most states provide
statutory damages for violating an individual's right of
publicity for commercial use. Make sure to have a release for
anyone in the photo, as well as permission from the photographer
(if you didn’t take the photo yourself).